ASHOK KUMAR JAIN Vs. PUNJAB AND SINDH BANK

JUDGEMENT

(1.) Plaintiffs/appellants have filed this appeal against the judgment and decree dt.23.9.2011 passed by the trial Court in Civil Suit No.2A/2010.

(2.) The plaintiffs filed a suit for declaration and permanent injunction. They pleaded that there was joint Hindu Family property of Nathulal, Pyarelal and Kashiram. There was a firm in the name of "Lalaram Nathuram" and the aforesaid Firm purchased a land by a registered sale deed dt.23.8.1940 area 134 ft. x 200 ft. situate at Mouja Dabra, Pargana Pichhor, District Gwalior. Another land was also purchased on 14.12.1948 area 15 yard and 25 yard. After the death of Pyarelal and Kashiram their legal heirs became owners of half of the property. Plaintiffs are the owners of the half of the property and defendants No.10 to 15 are owners of the half of the property. Padamchand Jain, defendant No.15 had taken a cash credit limit of Rs.7 lac from defendant No.1, a nationalized Bank and for the purpose of security of the loan Subhashchand Jain stood as surety and created equitable mortgage of the property. However, the defendants No.13 to 15 had no power and authority to create equitable mortgage of the property with the defendant No.1 because it was a Joint Hindu Family Property.

(3.) Defendant No.1 initiated proceedings for recovery of loan under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter shall be referred to as SARFAESI Act) and published a notice in the news paper on 23.8.2009 for auction of the property. Then the plaintiffs filed a petition before the High Court, which was registered as W.P.No.4466/2009. The aforesaid Writ Petition was disposed of as infructuous in view of the earlier order passed in W.P.No.3282/2009, which was filed by defendant No.13 Vijay Kumar Jain and the said petition was disposed of with the observation that Defendant No.13 can submit a dispute before the Debt Recovery Tribunal and consequently, the defendants No.12 and 13 filed a dispute before the Debt Recovery Tribunal Jabalpur, which was pending as Second Appeal No.4/2010. It is further pleaded that in accordance with the auction notice, auction proceedings were held and bank had sold the property a land area 18000 sq. ft. in favour of defendant No.2. A sale certificate was also issued in favour of defendant No.2. The plaintiffs sought a declaration that the aforesaid sale certificate be also declared null and void.